Bank of Utica v. Phillips

3 Wend. 408

• Court: New York Supreme Court
• Decided: October 15, 1829
• Status: Published

Opinion

By the Court,

Makcy, J.

Was the notice, under the circumstances of this case, sufficient to charge the defendant ? It appears to me that the question of diligence cannot arise except in cases where the party knows or ought to know that there is occasion for its exercise. Ought the holders of this note when it fell due to have known that intermediate its discount and maturity the endorser had changed his residence ? They had no reason to expect such an event, and of course no considerations of diligence could have prompted them to institute any inquiry in relation to it. Where the place of an endorser’s residence is established at the time when a note having the usual time of bankable paper to run is discounted, and is at such a distance from the place of payment as to repel the presumption that a removal (in case it happens before the note falls due) would come to the knowledge of the holders, and no actual knowledge is brought home to them, a notice of demand and non-payment directed to such place of residence is sufficient, ■ although' the endorsee has in fact, in the mean time, become a resident of another place.

Such I take this case to be, and am therefore of opinion that the notice given to the defendant was sufficient to charge him as endorser.

Judgment for plaintiffs.